Citation Nr: 0618268
Decision Date: 06/21/06 Archive Date: 06/27/06
DOCKET NO. 99-11 785 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Columbia, South Carolina
THE ISSUE
Entitlement to an initial evaluation in excess of 20 percent
for the service-connected low back disability.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARINGS ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
A. C. Mackenzie, Counsel
INTRODUCTION
The veteran served on active duty from August 1990 to May
1994.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a May 1997 rating decision issued by
the RO.
The Board remanded this case back for additional development
in April 1998, October 2003 and August 2005.
FINDINGS OF FACT
1. The service-connected low back disability is shown to
have necessitated extensive surgery and, despite some post-
surgical improvement, continues to be productive of a level
of disablement that more nearly approximates that of severe
functional limitation of the lumbar spine due to pain.
2. The service-connected disability is shown to be
productive of radiculopathy of the right lower extremity and
a resulting level of disablement that more nearly
approximates that of mild incomplete paralysis of the
external popliteal (common peroneal) nerve.
CONCLUSIONS OF LAW
1. The criteria for the assignment of an initial 40 percent
evaluation for the service-connected low back disability on
the basis of limitation of motion have been met. 38 U.S.C.A.
§§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38
C.F.R. §§ 3.159, 4.1, 4.7, 4.40, 4.45, 4.71a including
Diagnostic Codes 5235-5243 (2005); 38 C.F.R. § 4.71a
including Diagnostic Codes 5285-5295 (2002).
2. The criteria for the assignment of a separate 10 percent
evaluation for the service-connected disability on the basis
of right lower extremity radiculopathy have been met. 38
U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2005);
38 C.F.R. §§ 3.159, 4.1, 4.7, 4.124a including Diagnostic
Code 8521 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
In this case, the Board finds that all relevant facts have
been properly developed in regard to the veteran's claim, and
no further assistance is required in order to comply with
VA's statutory duty to assist him with the development of
facts pertinent to his claim. See 38 U.S.C.A. § 5103A; 38
C.F.R. § 3.159.
Specifically, the RO has obtained records of treatment
reported by the veteran and has afforded him comprehensive VA
examinations addressing his service-connected low back
disorder. There is no indication from the record of
additional medical treatment for which the RO has not
obtained, or made sufficient efforts to obtain, corresponding
records.
The Board is also satisfied that the RO met VA's duty to
notify the veteran of the evidence necessary to substantiate
his claim in letters issued in March 2004 and August 2005.
By these letters, the RO also notified the veteran of exactly
which portion of that evidence was to be provided by him and
which portion VA would attempt to obtain on his behalf. See
Quartuccio v. Principi, 16 Vet. App. 183 (2002).
In these letters, the veteran was also advised to submit
additional evidence to the RO, and the Board finds that this
instruction is consistent with the requirement of 38 C.F.R.
§ 3.159(b)(1) that VA request that a claimant provide any
evidence in his or her possession that pertains to a claim.
The Board is also aware of the considerations of the United
States Court of Appeals for Veterans Claims (Court) in
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006),
regarding the need for notification that a disability rating
and an effective date for the award of benefits will be
assigned if service connection is awarded.
However, the absence of such notification by VCAA letter is
not prejudicial in this case, as the veteran was fully
notified in an August 1998 rating decision that a 20 percent
evaluation had been assigned as of September 1, 1995.
Recently, in Mayfield v. Nicholson, 19 Vet. App. 103, 121
(2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir.
2006), the United States Court of Appeals for the Federal
Circuit (Federal Circuit) held that a comprehensive VCAA
letter, as opposed to a patchwork of other post-decisional
documents (e.g., Statements or Supplemental Statements of the
Case), was required. The Federal Circuit further held that
such a letter should be sent prior to the appealed rating
decision or, if sent after the rating decision, before a
readjudication of the appeal. Id.
Here, the noted VCAA letter was issued subsequent to the
appealed rating decision. However, that decision was issued
several years prior to enactment of VCAA. Moreover, as
indicated above, the RO has taken all necessary steps to both
notify the veteran of the evidence needed to substantiate his
claim and assist him in developing relevant evidence.
Accordingly, the Board finds that no prejudice to the veteran
will result from an adjudication of his claim in this Board
decision. Rather, remanding this case back to the RO for
further VCAA development would be an essentially redundant
exercise and would result only in additional delay with no
benefit to the veteran. See Bernard v. Brown, 4 Vet. App.
384, 394 (1993); see also Sabonis v. Brown, 6 Vet. App. 426,
430 (1994) (remands which would only result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the veteran are to be avoided).
In this case, the RO has evaluated the service-connected low
back disability under the criteria for rating intervertebral
disc syndrome. During the pendency of this appeal, the
criteria for evaluating spine disorders, including
intervertebral disc syndrome, have been substantially
revised.
For the period through September 22, 2002, under 38 C.F.R.
§ 4.71a, Diagnostic Code 5293 (2002), a 20 percent evaluation
was in order for moderate intervertebral disc syndrome, with
recurring attacks. A 40 percent evaluation contemplated
severe intervertebral disc syndrome, characterized by
recurrent attacks with intermittent relief.
A 60 percent evaluation was warranted for pronounced
intervertebral disc syndrome, with persistent symptoms
compatible with sciatic neuropathy which characteristic pain
and demonstrable muscle spasm, absent ankle jerk, or other
neurological findings appropriate to the site of the diseased
disc, with little intermittent relief.
For the period beginning on September 23, 2002, under
38 C.F.R. § 4.71a, Diagnostic Code 5243 (2005), a 20 percent
evaluation contemplates intervertebral disc syndrome with
incapacitating episodes having a total duration of at least
two weeks but less than four weeks during the past twelve
months.
A 40 percent evaluation is assigned in cases of
incapacitating episodes having a total duration of at least
four weeks but less than six weeks during the past twelve
months. A 60 percent evaluation contemplates incapacitating
episodes having a total duration of at least six weeks during
the past twelve months.
Moreover, the remaining diagnostic criteria for evaluating
spine disorders have recently been revised, effective from
September 26, 2003. This further revision incorporates the
new criteria for evaluating intervertebral disc syndrome. 68
Fed. Reg. 51454-51458 (August 27, 2003).
Under the prior criteria of 38 C.F.R. § 4.71a, Diagnostic
Code 5292 (2003), a 20 percent evaluation was warranted for
moderate limitation of motion, while a 40 percent evaluation
contemplated severe limitation of motion.
Also, under the prior criteria of Diagnostic Code 5295,
addressing lumbosacral strain, a 20 percent evaluation was
warranted for muscle spasm on extreme forward bending and
loss of lateral spine motion, unilateral, in the standing
position.
A 40 percent evaluation was in order for severe lumbosacral
strain, with listing of the whole spine to the opposite side,
positive Goldthwaite's sign, marked limitation of forward
bending in a standing position, loss of lateral motion with
osteoarthritic changes, or narrowing or irregularity of joint
space, or some of the above with abnormal mobility on forced
motion.
Under the recent revisions (Diagnostic Codes 5235-5242), a 20
percent evaluation is warranted for forward flexion of the
thoracolumbar spine greater than 30 degrees but not greater
than 60 degrees; a combined range of motion of the
thoracolumbar spine not greater than 120 degrees; or muscle
spasm or guarding severe enough to result in an abnormal gait
or abnormal spinal contour such as scoliosis, reversed
lordosis, or abnormal kyphosis.
A 40 percent evaluation is in order for forward flexion of
the thoracolumbar spine of 30 degrees or less, or favorable
ankylosis of the entire thoracolumbar spine.
A 50 percent evaluation is warranted for unfavorable
ankylosis of the entire thoracolumbar spine, while a 100
percent evaluation contemplates unfavorable ankylosis of the
entire spine.
Also, under these revisions, the "combined range of motion"
refers to the sum of forward flexion, extension, left and
right lateral flexion, and left and right rotation. The
normal combined range of motion of the thoracolumbar spine is
240 degrees. The code section for intervertebral disc
syndrome is now 5243, and associated objective neurological
abnormalities (e.g., bladder and bowel impairment) are to be
evaluated separately.
In this case, the Board has considered all relevant evidence,
dating back to the veteran's December 1995 VA spine
examination.
While the severity of the veteran's low back findings has
varied significantly over the lengthy pendency of this
appeal, the Board finds sufficient evidence to determine that
the currently assigned 20 percent evaluation does not
adequately contemplate either the underlying low back level
of disablement or the resultant right lower extremity
radiculopathy.
As noted, under the prior criteria of Diagnsotic Code 5293,
the currently assigned 20 percent evaluation is warranted in
cases of moderate intervertebral disc syndrome.
In the present case, however, the veteran's disability has
necessitated an epidural steroid injection in January 2003
and a right L5-S1 hemilaminectomy, facectomy, foraminotomy,
and microscopic diskectomy in February 2005. This surgery
followed a November 2004 private neurological consultation
revealing marked low back pain and subacute numbness, pain,
paresthesias and weakness of the right lower extremity.
Several private medical records dated after the February 2005
surgical treatment indicate a degree of improvement.
However, during his September 2005 VA spine examination, the
veteran reported periodic sharp aching pain occurring daily,
with radiation after prolonged standing. While he reported
no incapacitating episodes, he described his flare-ups as
recurring daily.
Based on the veteran's longstanding complaints of pain and
related loss of low back function, the Board finds that, for
the pendency of the appeal, the service-connected disability
picture more closely resembles that or severe restriction of
motion of the lumbar spine due to pain, in view of the prior
criteria of Diagnsotic Code 5292.
For this reason, and in view of 38 C.F.R. §§ 4.7, 4.40, and
4.45, the Board finds that a 40 percent initial evaluation is
warranted under those criteria. See also DeLuca v. Brown, 8
Vet. App. 202, 204-07 (1996).
The Board must note, however, that there is no basis for an
even higher evaluation. Given that the veteran has not
recently reported incapacitating episodes or ankylosis and
has had some measure of improvement since his surgery, the
Board finds no basis for a rating in excess of 40 percent
under either set of rating criteria.
This has also not been productive of ankylosis, as
specifically noted in the September 2005 VA examination
report and does not stem from a fracture. Consequently,
there is no basis for an increased evaluation under either
the old provisions of 38 C.F.R. § 4.71a, Diagnostic Codes
5285 and 5289, or the revised rating scheme.
However, the criteria do allow for separate evaluations for
associated objective neurological abnormalities.
During the pendency of this appeal, the veteran has reported
pain radiating into his right lower extremity, and a December
2002 private medical record indicates decreased sensation on
the lateral half of the right foot.
An April 2004 VA examination also revealed some subjective
decreased sensation of the dorsum of the right foot. While a
May 2005 private treatment report indicates that the
veteran's right lower extremity pain had resolved, a June
2005 report reflects that he still had some mild numbness and
tingling in his right leg.
Based on this evidence, the Board is satisfied that there is
objective medical confirmation of radiculopathy of the right
lower extremity, notably affecting the foot, and that this
symptomatology constitutes a disability warranting a separate
evaluation.
As to the question of what evaluation should be assigned, the
Board has considered 38 C.F.R. § 4.124a, Diagnostic Code
8521.
Under this section, a 10 percent evaluation is assigned for
mild incomplete paralysis of the external popliteal (common
peroneal) nerve.
A 20 percent evaluation contemplates moderate incomplete
paralysis, whereas a 30 percent evaluation is in order for
severe incomplete paralysis.
In cases of complete paralysis, with foot drop and slight
droop of the first phalanges of all toes, an inability to
dorsiflex the foot, extension of all toes lost, adduction
weakened, and anesthesia covering the entire dorsum of the
foot and toes, a 40 percent evaluation is in order.
Here, the Board finds the right lower extremity radiculopathy
symptoms to be chronic but relatively mild in degree. Prior
to the February 2005 surgery, the veteran's right lower
extremity symptoms were described on several occasions but
were not specifically indicated as being moderate or severe
in degree.
The post-surgical evidence described above indicates
improvement, but not resolution, of such symptoms. This
evidence is consistent with a 10 percent evaluation under
Diagnostic Code 8521.
Overall, the evidence supports the grant of an initial 40
percent evaluation for the service-connected low back
disability.
The evidence also supports the assignment of a separate 10
percent evaluation for the disability manifested by
radiculopathy of the right lower extremity. To this extent,
the appeal is granted.
ORDER
An initial 40 percent evaluation for the service-connected
low back disability on the basis of limitation of motion is
granted, subject to the regulations governing the payment of
VA monetary benefits.
A separate 10 percent evaluation for the service-connected
disability on the basis of right lower extremity
radiculopathy is granted, subject to the regulations
governing the payment of VA monetary benefits.
____________________________________________
STEPHEN L. WILKINS
Veterans Law Judge,
Board of Veterans' Appeals
Department of Veterans Affairs